Monthly Archives: January 2012

For the international lawyers and those who take an anthropological interest in their doctrinal debates, there have been a few interesting iterations on old themes recently. They fall into three categories, namely the ‘law of peace’ debate, the ‘justiciability’ debate, and the debate over whether UK Prime Minister David Cameron’s international law advisor is a crank or a mad genius. Lets take them in that order.

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

Shaun Williams is Land and Natural Resources Governance Adviser to theJustice for the Poor program of the World Bank.

In many emergent states, where significant proportions of property in de-colonized national territory is still held customarily, reform questions around immovable property and development often tend to be focused on rights issues within customary estates. However in these newer nations, state-owned land commonly includes the most economically valuable land, including significant areas of urban land, on which development pressure is high. This land was commonly first expropriated out of customary estates by colonial powers and then subsequently acquired by post independence states as part of a liberation ‘dividend’.

Most departing imperial powers evaded responsibility for restitution of colonial era dispossessions, as subsequently have post independent states, thereby protracting a significant source of much civil discontent. Many new states have also been unable to overhaul the arcane land administration institutions they inherited, which were designed to service the land needs of long gone, colonial era, church and trading elites, thereby frustrating the configuration of the new elite coalitions of local entrepreneurs needed to accommodate the rapid urbanization they are all experiencing (UN-HABITAT has estimated that 30% of all Solomon Islanders and almost 40% of Vanuatu’ and Timor-Leste’ populations will be living in cities by 2030). As the legitimization, adjudication and enforcement of property rights is a core function of nation states, these failures in turn undermine wider state building projects.

More important perhaps, throughout the developing world poor governance of state land negatively impacts the poor materially. Mismanagement of state land results in loss of significant amounts of economic rent (because of the high value of state land) that could otherwise be spent on the public services or invested in the infrastructure upon which the poor depend. These foregone rents are frequently being captured by the patrons of sometimes corrupt administrators operating within highly discretionary and otherwise dysfunctional regulatory frameworks.

Indifferent management of state land clogs up land markets, notably urban immovable property markets where demand is high and supply is tight. Poorly managed disposal of state property is equally unlikely to produce better outcomes. Warehousing by speculators of leases and concessions of state owned land, frequently acquired through opaque and uncompetitive allocations, further restricts supply, particularly of urban land, thereby inflating urban land prices and directly contributing to the unaffordability of city housing for both the poor families and low- to middle-income earners.

Recent evidence from Solomon Islands suggests that a reform focus on the governance of state land holdings, even if relatively small in area, can yield outsized benefits. In Solomon Islands, as much as 10 percent of GDP may be affected by how effectively urban state (referred to in the relevant Solomon Islands legislation as ‘public’) land is governed and the World Bank’s Justice for the Poor program, UN-HABITAT, and other partners are working to catalyze interagency coordination to move towards improve urban state land governance.

The last few weeks have brought a confusing spate of reports that predict the demise of traditional, monogamous one person-one passport citizenship along with others that indicate that states are more determined than ever to retain its essence. So what does this have to do with this blog? Well, for one thing, citizenship is the glue that governments have traditionally used to bind particular populations to the territories they control, completing the triangle of statehood. But the issue also has personal overtones for me as part of the great global expat class. I’ve got two dual citizen kids, and could probably use a bit of dual citizenship myself, at the very least as a matter of administrative convenience.

Should administrative convenience count? The Economist argues yes in an editorial the week before last, noting that traditional citizenship was never an ironclad guarantee of loyalty, and nor is it particularly relevant to security in an age of professional militaries. Although significant complications involving voting rights are acknowledged, the magazine sees and applauds a trend toward routine multiple citizenship as an economic win-win situation, and one in which tax residence can serve as a new and more practical signifier of political loyalties:

Rather than making a fetish out of passports, a better approach would be to use residence (especially tax residence) as the main criterion for an individual’s rights and responsibilities. That encourages cohesion and commitment, because it stems from a conscious decision to live in a country and abide by its rules.

However, an article in the same Economist outlines new restrictions on the acquisition of dual citizenship imposed by EU states such as the Netherlands and Germany. Meanwhile, citizenship law expert Peter Spiro posts on Opinio Juris on how the US – which is already virtually unique in imposing double taxation on its better-earning expat citizens – has now piled on burdensome reporting requirements on assets held abroad. Spiro notes that the requirement may make it impossible for the 4-6 million Americans abroad to open local bank accounts and speculates that many with dual citizenship will go underground or renounce their US citizenship.

However, Israel appears to have gone furthest in bucking the trend toward more liberal citizenship rules, with its Supreme Court deciding last week that Palestinians who marry Israeli citizens may be categorically excluded from citizenship. Sound a bit … oh, well … hard to square with fundamental non-discrimination norms? Israeli judge Asher Grunis will no doubt long be remembered for his pithy response:

Human rights do not prescribe national suicide.

Well, don’t they now? In a separate and fascinating survey of trends in citizenship law, Peter Spiro argues in the latest American Journal of International Law that perhaps they do. Sadly, the full article lurks behind a subscription-wall, but the abstract can be read here:

State practices relating to nationality and citizenship have historically been insulated from international law. That is beginning to change as citizenship moves into a human rights frame. Citizenship practices relating to naturalization, birthright citizenship, and dual citizenship are being measured against anti-discrimination and self-governance norms. These developments will expand access to citizenship, though the new international law of citizenship may also contribute to the erosion of state solidarities that are important to liberal governance.

In essence, Spiro argues that human rights norms are inexorably curtailing the the traditional prerogative of states to ‘self-define’ their membership through the discretionary grant of citizenship. Given that human rights advocates have focused on forbidding the arbitrary denial of citizenship to long-term residents, liberal theory would ordinarily hold that those eligible for citizenship under such terms would likely have integrated over time and made the type of “conscious decision to live in a country and abide by its rules” the Economist lauds (above) in promoting tax residence as a sort of contemporary proxy for what citizenship has been.

However, Spiro cites the scale of current migration and the nature of globalization in questioning whether such bonds can still be said to automatically result from residency. Ultimately, he raises the question of whether “internationally mandated membership” may not only reduce the levels of solidarity in states, but also – and as a result – their actual capacity to continue acting as the primary guarantors of human rights. Death of states? Not necessarily. Default devolution of some of the central attributes of sovereignty to supranational institutions that will hopefully have the legitimacy and capacity to pick up the slack by then? Well, stay tuned.

So where do my loyalties (or at least my sympathies) lie? I pay taxes and consume services in Sweden, and enjoy a quality of life here that would be the envy of a vast proportion of my fellow global citizens. I participate most emphatically in the culture of Finland, or rather Åland, at least since I got involved in the slightly manic ritual of wrestling the annual midsummer pole up along with the other (and better qualified) yeomen of my wife’s ancestral village. And whenever I get back to the States again, its like I’ve woken up from a dream. Not a bad one, mind you, but one that has you scratching your head because it seemed so plausible at the time, but could it really have been like that?? I guess a bit of cultural vertigo is the sign of our times.

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada. She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013). Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people. Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations. Further, a steady stream of judicial decisions (Beckmanv.Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however. Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing. Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples. Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada. The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position. To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw). While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted. The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement. While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time. University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands. Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights. They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country. The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders. A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat. But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

The Internal Displacement Monitoring Centre (IDMC) recently published its latest overview of the situation of internal displacement in Colombia. Among other things, this document highlights the latest decision by the Constitutional Court of Colombia ruling that, seven years after it started monitoring the situation of IDPs and the Governmental response, the conditions that IDPs face in Colombia still amount to a widespread and generalized violation of their human rights (what the Court calls an ‘unconstitutional state of affairs’; or an estado de cosas inconstitucional or ECI, in Spanish.)

The Court first declared an ECI in relation to the situation of IDPs on January 22, 2004, and since then it has maintained oversight of the process towards overcoming the ECI, issuing over 100 follow-up decisions and holding nearly a dozen hearings with stakeholders. This is not the first time that the Court has ruled that a widespread or structural violation of rights exists in Colombia. It did so for the first time in 1997 and since then on seven subsequent occasions, on issues ranging from prison overcrowding to shortcomings of the national healthcare system.

Much valuable commentary has been written about the role of the Court in shaping and defining IDP policy in Colombia, including by those leading the process from within the bench, as well as about the Court’s invaluable contributions to comparative jurisprudence in the development of social policies in the global South, including in India, South Africa and a number of other Latin American countries. The aim of this inquiry is to examine the implications of the Court’s latest decision regarding the question of the end of displacement.

Early 2012 has brought a bumper crop of guest postings that I will aim to spread out over the next weeks. Many of these postings address controversial questions or put forward considered and well-founded but debatable (and debated) assertions, so I would welcome readers to engage with them, comment on them and even be moved to guest-post themselves.

First out will be Sebastian Albuja, who is the Internal Displacement Monitoring Centre (IDMC) country analyst for Colombia, and has previously guest-posted on the country’s new restitution framework here and here. This time, Sebastian will introduce the IDMC’s recently updated profile of internal displacement in Colombia and discuss the implications – both positive and negative – of the strong role the country’s Constitutional Court has taken in setting criteria for determining when displacement there can be said to have ended.

Also in the next days, Anneke Smit and Gloria Huh of the University of Windsor Law School will provide a short piece summarizing recent debates in Canada over property and housing for indigenous peoples as well as links to further sources of information. As described in a recent article in the Globe and Mail, proposals to facilitate private property ownership on First Nations’ reserves have sparked significant discussion and controversy.

Shaun Williams, the Land and Natural Resources Governance Adviser for the World Bank’s Justice for the Poor Program, will be guest-posting on the governance of disputed ‘public land’ in post-colonial countries, an issue of particular significance in urban areas characterized by high development pressures. The posting will build on research undertaken in the Solomon Islands.

The piece will discuss the rights-based approach to peacebuilding and its value to protecting vulnerable and marginalised groups and emphasising a state’s obligations regarding their welfare and providing remedies for violations. Whilst there has been little progress in treating economic, social and cultural abuses as violations of human rights and providing a legal remedy, property restitution based on the right to return to one’s home of origin and the right to a legal remedy is an exception.

Land and property issues figure prominently in conflict and a rights-based approach to these issues can contribute to peacebuilding including, supporting the rule of law, IDP and refugee returns, protection of vulnerable groups and reconciliation. The piece will look at the role of land and property issues in the Kosovo Conflict and the contribution and limits of a rights-based approach to these issues and particularly property restitution to peacebuilding in the country.

It is considered axiomatic that justice and property restitution are inextricably linked. However, this link is far from universal and indeed highly context-specific. In order to better understand the justice implications of property restitution it is important to interrogate the philosophical ideals which are at the foundation of this “right” and consider how property restitution looks through different philosophical lenses. The forthcoming guest post will consider property restitution through both corrective and distributive justice paradigms. We will see how these very different perspectives imply very different things about the justice of property restitution.

Terra Nullius

A blog on:
-housing, land and property (HLP) issues
-human rights law and humanitarian policy
-transitional justice and rule of law
-early recovery and development
-self-determination and minority rights.
Open and notorious since February 2010.
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Suggested citation: Author's Name, "Name of Post", TerraNullius Weblog (posted on [date]), available at [URL], accessed on [date].
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Antipodean caveat: The author does not condone imperialist land-grabbing under cover of obscure latin phrases.

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